Will the law ever draw the line in the sand when it comes to the limits of protected speech?

The internet’s uncanny ability as a tool to push the limits of protected speech is once again in the news, as a number of recent high-profile incidents highlight the lack of firm legal boundaries online to delineate the actionable from the merely false or distasteful.

Social media has proven to be a popular communication tool in everyday life; it has also proven to be invaluable as a method with which to stay connected to family and friends, to galvanize support and relief, and to disseminate news during everything from natural disasters to political unrest. But the way social media was used during Hurricane Sandy, which hit the Northeastern seaboard in October 2012, also highlighted the downside to using widely-sourced information in the form of social media, when false information went viral.

This photo is really built from production art taken from the movie “The Day After Tomorrow”

Examples of false information that was widely distributed via twitter include a photograph of the soldiers at Arlington Cemetery standing in inclement weather, an image of a wave-battered State of Liberty, and even sharks swimming in a suburban front yard in New Jersey. So widely shared were these images that clarifying tweets and tumblrs were launched to identify which were real, and which were photoshopped spoofs. [1]

One of the sources of both false information and “real” information was Twitter user @comfortablysmug. Some of @comfortablysmug’s false tweets included the statements that the stock exchange had flooded, that it had been announced that all New York subways would be closed for the rest of the week, and that ConEdison was shutting off all the power to New York City. [2] “BREAKING: Con Edison has begun shutting down all power in Manhattan,” read one false tweet. “BREAKING: Governor Cuomo is trapped in Manhattan. Has been taken to a secure shelter” read another. Several of @comfortablysmug’s tweets were retweeted more than 500 times each, catching the attention of ConEdison, which released a direct rebuttal tweet. [3]

As informational tweets passed from one source to the other, they gained a level of credibility. CNN, for example, assumed at least one false tweet was legitimate, as it had sourced it from The National Weather Service. The NWS, in turn, had sourced the tweet(s) from outlets they assumed were credible. Eventually, both TNWS and CNN realized some of @comfortablysmug’s tweets had false information and they course corrected, but not before their followers retweeted the erroneous information, as well.

Though @comfortablysmug’s Twitter profile did not include a real name, a determined BuzzFeed contributor wanted to know who would send false information during an emergency, and was able to eventually identify the writer by tracing the photos he had used. Shashank Tripathi, a Wall Street analyst and Congressional campaign manager, was identified as @comfortablysmug, a Twitter user who was sending some 6,500 followers a mix of fake and legitimate information. After being publically identified, Tripathi stated, “I wish to offer the people of New York a sincere, humble and unconditional apology.” [4]

Was Tripathia’s behavior criminal mischief or free speech? [5] While there are no Twitter-specific laws currently in place, as more Twitter users view the text stream as a legitimate news source, many feel that “a Twitter feed becomes a de facto emergency broadcast channel.” [6] Can we – should we – in light of @comfortablysmug’s behavior, hammer out limits to social media speech when that media channel is being used as an “emergency broadcast channel?” That scaffolding might be setting up just out of sight at this very minute. New York City Councilman Peter Vallone has requested that the Manhattan district attorney’s office explore whether Tripathi might face criminal charges. Ken Paulson, an attorney and a former editor for USA Today, commented to GigaOM that “the government already regulates rumors related to the SEC and the stock market, and courts say they will draw a line at protecting speech that gives rise to ‘imminent lawless action.'” Will the line be drawn to exclude or include social network speech during an emergency? [7]

In another case of anonymous-speech-gone-wrong, the popular user-generated content website Reddit recently came under public scrutiny in October 2012, when a high-level commentator was outed with his real name and location. This “in real life” identification is one that Reddit members generally abhor, and set off free speech and protected speech debates in countless online communities, in blogs, in print, and for other outlets, from Anderson Cooper to The New Yorker. “Violentacrez” – real name, Michael Brutsch – was a Reddit member notorious for, among other things, setting up hundreds of subforums where he and other members posted photographs and commented on sites with names such as “Incest,” “Pics of Dead Kids,” “Rapebait,” and “Rape Jokes.” Behind the anonymity of the user name, “Violentacrez” attracted an estimated 800,000 subscribers to the site. While “Violentacrez” had a passionate fan following, he also had a passionate number of detractors, who were not comfortable with the sites he generated or the behavior they stated that he and the others encouraged, especially in his infamous forum, “Jailbait.” [8] “Jailbait” featured photographs followers took without permission from Facebook profiles and other online sources, as well as photographs that were taken by members, of teenage girls. The girls’ images were posted to “Jailbait” without their or their parents’ consent. The site, Violentacrez said later, drew hundreds of thousands of page views, and that audience draw, plus his role as a Reddit “superuser,” allowed by administrators to police illegal content from the sites, prompted Reddit overseers (to the extent that there are any) to give him a celebratory “Worst Reddit” award. When Brustch and others were asked to take down the sites where he and other members posted, his response was that it was a free speech issue. [9]

A journalist from the site Gawker.com made it his mission to find out the real name of Violentacrez. After Brutsch was unmasked via “doxxing” (identifying an individual by using the multiple sources of information left by said individual on the internet), he gave interviews on CNN and Anderson Cooper 360 to attempt to explain his actions. Reddit overseers, facing an avalanche of criticism, said in an email sent to CNN that Reddit “follows all the legal requirements regarding illegal content, including reporting to the proper authorities. By its nature, moderators at Reddit have complete control over the subsections they start unless they violate site rules or the law.” While Brutsch himself admitted that his subforums were at times morally questionable, he has claimed that he never crossed a legal threshold into illegal behavior. [10]

An even larger story than finding “the internet’s biggest troll” was the outcry that followed; little is held more dearly on the internet, it seems, than anonymity.

Staunch anonymity defenders, outraged by Brutsch’s doxxing, cited his right to free speech and the chilling of said speech if internet anonymity is not ensured. “Pseudonymity is great because it allows people to speak without the usual constraints, but it can also be terrible for the same reason,” wrote journalist Lindsay Beyerstein. “As Violentacrez, Michael Brutsch opted out of all social controls on his speech and ran amok. He could say things he would never have said under his real name because they’re rightly regarded as horrifying.” [11]

While Brustch at this time does not appear to be facing legal consequences for his actions, the incident brought the issue of internet free speech rights into sharp relief like never before. As author John Scalzi comments, “The ‘free speech’ aspect of this is largely nonsense. Reddit is not a public utility or a public square; it’s a privately owned space on the Internet. From a legal and (United States) constitutional point of view, people who post on Reddit have no ‘free speech’ privileges; they have what speech privileges Reddit itself chooses to provide them, and to tolerate. Reddit chooses to tolerate creepiness and general obnoxiousness for reasons of its own, in other words, and not because there’s a legal or constitutional reason for it.” [12]

In 1996, The Communications Decency Act (CDA) was one of the first large-scale attempts by the United States Congress to place limits on pornographic material which appeared on the Internet. In 1997, the U.S. Supreme Court declared parts of the CDA unconstitutional and partially overturned the law. Judge Stewart R. Dalzell stated in his opinion, “Some of the dialogue on the Internet surely tests the limits of conventional discourse. Speech on the Internet can be unfiltered, unpolished, and unconventional, even emotionally charged, sexually explicit, and vulgar – in a word, ‘indecent’ in many communities. But we should expect such speech to occur in a medium in which citizens from all walks of life have a voice. … In my view, our action today should only mean that Government’s permissible supervision of Internet contents stops at the traditional line of unprotected speech. … The absence of governmental regulation of Internet content has unquestionably produced a kind of chaos, but as one of the plaintiff’s experts put it with such resonance at the hearing: ‘What achieved success was the very chaos that the Internet is. The strength of the Internet is chaos.’ Just as the strength of the Internet is chaos, so that strength of our liberty depends upon the chaos and cacophony of the unfettered speech the First Amendment protects.” [13]

In a recent case examining the limits to speech beyond issue of anonymity, a Chicago-area website poster who used his own name hoped to use the protection of free speech, but was denied. The 7th U.S. Circuit Court of Appeals concluded that website posts by the white supremacist were not subject to the shield that the Constitution extends to speech.

The site owner posted a person’s name, address, and other identifying information on his website. While no overt calls to action were included, the identified man had served as a jury foreman in a 2005 trial in which another white supremacist, the website owner’s colleague, had been convicted of soliciting the murder of a federal judge. The implication was that the information was an implicit call to violence, within the context of the site, as previously the site had called for the assassination in 2008 of then-presidential candidate Barak Obama. In a unanimous 30-page ruling, a panel of three judges agreed that while the First Amendment protects even loathsome speech, criminal solicitations were not protected. The appellate court overturned a lower court’s decision that the content was protected by the First Amendment. [14]

While the strength of the internet free speech may indeed be cacophony and chaos, as Judge Dalzell stated, has the volume of that cacophony reached an untenable level? The courts may soon decide. The cacophony, for now, continues.